The Canadian Constitution: Introduction to Canada’s Constitutional Framework

The Constitution is Canada’s premier political institution, representing the basic “rulebook” by which Canadian politics operate. It is, however, also one of the nation’s more complex political concepts to understand. The purpose of this article is to provide an introduction to the basic nature of the Canadian Constitution. In so doing, this article examines the function of the Constitution as a governmental or national political code, the Constitution’s written and unwritten sources, and the key principles and values contained within the constitutional framework.

Diverse set of written and unwritten rules

Key constitutional principles and values

Constitution amendment & interpretation

List of article sources and links for more on this topic

What is the Canadian Constitution?

Basic nature and function of the Constitution

Constitution as a Political Rulebook

Generally speaking, a constitution is a system or code that establishes the rules and principles by which an organization is governed. Many different types of organizations have constitutions, ranging from companies, to voluntary organizations, to political parties. The Canadian Constitution is an example of a particular type of constitution, usually referred to as a governmental or national constitution. In this context, the Canadian Constitution establishes the rules and principles that govern the operation of government and political life in Canada. It represents, in essence, the basic “rulebook” of Canadian politics, setting out the nation’s fundamental political principles, the powers and duties of government, and the rights and privileges of citizens.

Governing Key Political Relations

As the basic rulebook for Canadian politics, the Constitution governs several key political relations in Canadian society. First, it establishes basic principles and rules that govern the relationship between citizens and the state. In this context the state is understood as encompassing all branches (executive, legislative, and judicial) and levels (federal, provincial, territorial, and local) of government. The Constitution empowers the state (or parts of it) to deliberate, enact, and implement laws that will govern the life of citizens. At the same time, the Constitution also recognizes important citizen rights that limit how the state may exercise this power and authority.

Secondly, the Constitution provides the basic principles and rules that govern the relationship between different parts of the state. It establishes the distribution of functions and powers between the different parts or branches of government, such as between the political executive (Monarch and Cabinet), the legislatures (House of Commons and Senate), and the judiciary (Canada’s courts). The Constitution also provides the basic rules governing the relationship between different levels of government, such as the federal (or national), provincial and territorial (regional), and local governments.

Supreme Law and Constitutionalism

The Constitution is recognized as the supreme law in Canada. This means the principles and rules contained within it have a special legal status in Canadian political society. In the first place, the Constitution takes precedence over all other Canadian laws. When inconsistency occurs with another law, the Constitution is always recognized as being preeminent (it is often the case that the other law will be declared ‘unconstitutional’ because of this inconsistency and, as a result, will have no legal force). Furthermore, this notion of supremacy carries with it the principle of Constitutionalism. Under this principle, no political actor or institution is above the principles and norms as defined by the Constitution. Regardless of whether one is the Monarch, the Prime Minister of Canada, a provincial Premier, or an elected representative in a legislature, all are legally obligated to act in accordance with the constitutional rulebook.

Sources of the Canadian Constitution

Diverse set of written and unwritten rules

The Canadian Constitution is based upon a diverse collection of written statutes, orders, judicial decisions, and unwritten conventions and traditions. The following section provides an introduction to these different constitutional sources.

Constitutional Acts and Amendments:

Much of the Canadian Constitution has been established in the form of written constitutional acts and amendments. These are formal constitutional documents (or changes to previous versions of the same document) that have been enacted by British or Canadian legislatures for the purpose of setting out the nation’s constitutional framework. The most important of these is the British North America Act, 1867 (which, in 1982, was re-named the Constitution Act, 1867). This piece of legislation, originally passed by the British Parliament in 1867, is Canada’s founding document, providing for the joining of Nova Scotia, New Brunswick, Ontario, and Quebec into the Dominion of Canada. Moreover, this document established many of the basic institutions of government in Canada, such as the Monarchy, the Parliamentary system, and federalism.

Since passage in its original form, the Constitution Act, 1867 has been amended numerous times. One of the most important amendments is the Constitution Act, 1982, which significantly changed the nation’s basic constitutional norms and rules. This amendment included a domestic constitutional amending formula (ending the tradition of constitutional acts and amendments being passed by the British Parliament), the Canadian Charter of Rights and Freedoms (which provided for constitutionally protected rights for citizens), and statements concerning key areas in Canadian governance (such as equalization payments between provinces, multiculturalism, and Aboriginal rights).

Other formal constitutional amendments of note include:

Constitution Act, 1907 (established a new regime of federal-provincial relations)

Constitution Act, 1930 (transferred ownership of natural resources from the federal government to Western provinces)

Constitution Act, 1951 (allowed the federal government to legislate in the area of old age pensions)

Constitution Act, 1964 (established old age pensions as an area of joint federal- provincial jurisdiction)

Constitution Act, 1985 (permitted future distribution of seats in Parliament to be done by ordinary statute)

Constitution Amendment Proclamation, 1993 (made both the English and French languages official in New Brunswick)

Constitution Act, 1999 (provided the new territory of Nunavut with representation in the House of Commons and the Senate)

British Statutes and Orders-in-Council

Another important foundation for the Canadian Constitution is a collection of British statutes and Orders-in-Council.

In this context, British statutes refer to legislation originally passed by the British Parliament, which, although not formal constitutional acts, nevertheless still have significant constitutional consequences for Canada today. Chief amongst these is the Statute of Westminster, 1931, which recognized Canada (as well as many other dominions of the British Empire) as being completely independent of Britain.

British Orders-in-Council, by contrast, are executive decisions made by the British Cabinet (Prime Minister and cabinet ministers). Constitutionally important orders in Canadian constitutional history include the Rupert’s Land and North-Western Territory Order, 1870 (which transferred Hudson Bay Company lands to Canada), the British Columbia Terms of Union, 1871 (joined British Columbia to Canada), the Prince Edward Island Terms of Union, 1873 (joined that colony to Canada), and the Adjacent Territories Order, 1880 (extended Canada’s borders to include the Arctic Islands).

Other Canadian Statutes

The Canadian Constitution also includes several Canadian statutes, which are pieces of legislation passed by Canadian legislatures that have important constitutional implications. These would include those carving provinces and territories out of the Northwest Territories, such as the Manitoba Act of 1870, Saskatchewan Act of 1905, the Alberta Act of 1905, the Yukon Act, and the Nunavut Act. Other examples include the Supreme Court Act, the Parliament of Canada Act, and the Canada Elections Act, which all govern the operation of important institutions in Canadian politics.

Judicial Decisions

Another important constitutional source: judicial decisions that clarify or alter provisions of Canada’s written constitutional documents, statutes, and Orders-in-Council. In particular, this would include the judgments of the British Judicial Committee of the Privy Council (which acted as Canada’s last court of appeal in constitutional matters until 1949) and the Supreme Court of Canada (which later replaced the British Judicial Committee as the nation’s highest court). While judicial decisions have impacted all aspects of the Constitution, they have been especially significant in the areas of federalism and citizen rights and freedoms.

Unwritten Conventions

Canada’s Constitution is also based upon numerous unwritten conventions. These are rules and norms that have never been formally written in a constitutional document, but are regularly observed nevertheless. Many of these unwritten rules have been inherited from Britain (with some modification), while others are unique to the Canadian constitutional context. Important examples include the predominant role and influence played by the Prime Minister of Canada (in Cabinet and in the executive branch in general), the subordinate position of the Governor General of Canada, and the practice of responsible government(with Cabinet required to resign if it cannot hold a majority of support in the House of Commons).

Provisions of the Canadian Constitution

Key Constitutional Principles and Values

The Canadian Constitution encompasses a wide set of principles and values that govern key political relations in Canadian society. The following section provides an introduction to some of these key constitutional provisions.

Constitutional Monarchy

A central component of Canada’s constitutional framework is the provision for a constitutional monarchy. The Constitution Act, 1867 states that executive government and authority in Canada is vested in the Canadian Monarchy (which Canada shares with Great Britain and other former British colonies). The Act further provides for the offices of the Governor General of Canada (at the federal level) and Lieutenant Governors (at the provincial level), recognized as the Monarch’s representatives in Canada. It is important to note, however, that while the written constitution explicitly places executive authority in the hands of the Monarch and his/ her representatives, unwritten constitutional convention holds that this authority is actually exercised by the Prime Minister and his/her Cabinet.

Parliamentary Government

The Canadian Constitution also provides for a Parliamentary system of government. The Constitution Act, 1867 established a federal Parliament, consisting of the Monarchy and two legislative chambers, the House of Commons (or Lower House) and the Senate (or Upper House). The Act further states that the powers and authority of these legislative chambers are to modelled upon those found in the British Parliament. Further, the Act also established legislative chambers at the provincial level. In addition to the written provisions of the Act, there also exist several unwritten constitution conventions that are fundamental to the operation of Canada’s parliamentary system. These include executive dominance by the Prime Minister and Cabinet (at the federal level) and by the Premier and Cabinet (at the provincial level), as well as the practice of responsible government.

Federalism

The Constitution also provides for a federal system in Canada, meaning there are two key levels of government: the federal (or national) government and the provincial (or regional) governments. The Constitution Act, 1867 outlines specific powers and jurisdictions for each of these levels of government, such as what public policy fields each may legislate in, as well as how each level of government may raise revenue. Over the years, these constitutional provisions have been further clarified and evolved by judicial decisions (first by the British Judicial Committee of the Privy Council, and later by the Supreme Court of Canada).

There have also been several constitutional amendments that have had significant consequences for Canada’s federal system. The Constitution Act, 1930, for example, transferred ownership of natural resources in Western Canada from the federal government to the Western provinces. Another significant amendment was the Constitution Act, 1982, which committed the federal government and provinces to ensuring some level of economic and social equality between Canadian regions. This, in turn, has led to the development of the Equalization Program and the sharing of public funds between governments.

Individual Rights and Freedoms

In addition to outlining the basic structure of government, the Constitution provides for a broad set of individual rights and freedoms, most of which are stated in the Canadian Charter of Rights and Freedoms. Key Charter rights include fundamental freedoms (the freedoms of religion, expression, and association), democratic rights (such as the right to vote and run for political office), mobility rights, legal rights (such as the right to be secure against unreasonable search and seizure and the right not to be arbitrarily detained and imprisoned), and equality rights (the right to be treated equal before the law and the right be free from discrimination). It is important to note that the Charter only states these rights and freedoms in very general terms. Their precise meaning is interpreted and clarified by the Canadian judiciary (and, in particular, the Supreme Court of Canada).

Language and Aboriginal Rights

Not only does the Constitution provide for individual rights and freedoms, but also two important sets of group rights.

The first set of group rights centres on the English and French languages. The Canadian Charter of Rights and Freedoms recognizes both of these as Canada’s official languages. The Charter also recognizes these languages as having equality of status in all federal government institutions, as well as in all New Brunswick provincial government institutions (New Brunswick has significant English and French populations). The Charter also extends several minority language education rights. This means, for example, that French or English citizens who are part of the linguistic minority in a province have the right to have their children educated in that minority language.

A second set of constitutional group rights centres on Aboriginal ethnic groups. The Constitution Act, 1982, for example, recognizes and affirms existing Aboriginal and treaty rights (which may include a broad range of particular rights, such as the right to use certain pieces of land and the right to continue traditional social and economic practices). The Act also states that Aboriginal groups must be consulted before any amendment is made to Class 24 of Section 91 of the Constitution Act, 1867 (which places Aboriginal people and reserve lands under the jurisdiction of the federal government).

Finally, as with the individual rights and freedoms found under the Charter, the precise meaning and consequences of these group rights are interpreted and clarified by the Canadian judiciary, and, in particular, by the Supreme Court of Canada.

Evolving the Canadian Constitution

Constitution Amendment and Interpretation

Earlier it was asserted that the Constitution represents the basic set of norms and rules governing the operation of government and political life in Canada. This raises an important question: what occurs when citizens desire to change these basic rules, or when the existing rules fail to fully account for new or unanticipated circumstances? In these situations the Constitution may be changed or clarified through two important mechanisms: formal constitutional amendments and judicial interpretation.

Formal Constitutional Amendments

Formal constitutional amendments are pieces of legislation passed by Canadian legislatures that change basic constitutional norms and principles. The Constitution may be altered in this manner at any time and for any reason. The Constitution Act, 1982 does, however, place specific requirements (referred to as ‘amending formulas’) on the manner in which these changes may take place. There are five different amending formulas in all under the Constitution.

The first amending formula applies to the following constitutional areas:

The office of the Monarch, the Governor General, and the Lieutenant Governor of a province;

The right of a province to have the same, or more, members in the House of Commons than it has in the Senate;

The use of the English or French language at the federal level of government;

The composition of the Supreme Court of Canada; and,

Changes to this list of items that require unanimous consent for constitution change.

In order to make changes to these items, the first amending formula requires unanimous federal and provincial consent. This means the constitutional amendment must be approved by the federal Parliament (which includes the Monarchy, the House of Commons, and the Senate), as well as all of the provincial legislatures.

The second amending formula applies to all other matters that affect both the federal government and all of the provinces. It, however, requires only unanimous federal and significant provincial consent. This means, more specifically, approval by the federal Parliament (again, the Monarchy, House of Commons, and Senate) plus two-thirds of the provincial legislatures, which combined represent at least 50 percent of the national population.

The consequences of this second amending formula, however, differ depending on the particular area of the constitutional amendment. In some cases, dissenting provinces can “opt-out” of the constitution change. Remember, the second amending formula only requires consent by two-thirds of the provinces (representing at least 50 percent of the national population). If, for example, seven of 10 provinces agreed to transfer a provincial power to the federal government, the constitutional change would only apply to those seven provinces that consented. The remaining three provinces could choose to retain that power. In other cases, however, there is no opt-out option, meaning the constitutional amendment is applied to all provinces, consenting or not. This would include amendments to the following items:

The principle of proportionate representation in the House of Commons;

The powers of the Senate and the method of selecting Senators;

The number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;

The Supreme Court of Canada (other than its composition);

The expansion of provincial borders into the territories; and,

The establishment of new provinces.

The third amending formula applies only to constitutional amendments that affect the federal government and one or more (but not all) of the provinces. This would include such items as boundary alternations between provinces or changes to the use of the English or French languages within a province. Such changes would require only the consent of the federal Parliament and the legislatures of those provinces involved.

The fourth amending formula applies to constitutional amendments that only affect the federal government, such as the executive government, the House of Commons, or the Senate (excluding, of course, those items listed under the other amending formulas). Under this formula, only the consent of the federal Parliament is needed (the Monarch, House of Commons, and Senate).

Finally, the fifth amending formula allows individual provinces to amend their own constitutions (excluding matters that affect other provinces or the federal government, or the office of Lieutenant Governor). Such matters require only the consent of the provincial legislature.

Judicial Constitutional Interpretation

Only the executive and legislative branches of government (together) have the authority to enact formal constitutional amendments. Nevertheless, the judicial branch, as constitutional adjudicators and interpreters, play an important role in the evolution of the Canadian Constitution.

In understanding the judiciary’s role, it is important to note the nature of Canada’s Constitution. Written constitutional sources, such as the Constitution Act, 1867 and the Constitution Act, 1982, are short documents with very general statements regarding the structure of government and citizen rights. As a result, constitutional principles and values may be somewhat unclear or highly contestable.

The federal government and the provinces, for example, often disagree on the details of federalism (where does the jurisdiction of one level of government end and the jurisdiction of another begin?). Furthermore, there is often disagreement over the precise application of individual and group rights contained in the Constitution (for example, do government limits on hate expression unconstitutionally violate the Charter right to freedom of expression?)

When these sorts of constitutional conflicts occur, it is the role of the judiciary to adjudicate the issue, that is, to decide whose side the Constitution favours. In so doing, the judiciary undertakes the task of interpreting the meaning of specific constitutional provisions and how they should be applied in a particular context. For example, do constitutional Aboriginal rights include the right to hunt and fish on provincial land? Does the traditional legal definition of marriage (as between one man and one woman) violate the Charter right to equality?

In addressing these constitutional questions, the judiciary can have substantial impacts on the nation’s basic political norms and rules. They may, for example, interpret the constitutional principle of federalism in a more centralized (pro-federal government) or decentralized (pro-provinces) terms. They may interpret individual freedoms in a more liberal or conservative manner (which will affect the sorts of actions an individual may or may not be free to take). They may apply different interpretations to language and Aboriginal rights, which, in turn, can have a social and/or economic impact on the these linguistic and ethnic groups.